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Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission

 

[2020] QCAT 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 69

PARTIES:

ORACLE BUILDING CORPORATION PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR092-18; GAR286-18

MATTER TYPE:

Building matters

DELIVERED ON:

4 March 2020

HEARING DATE:

30 May 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

In GAR092-18:

  1. The decision of Ms White on 19 February 2018 to issue a direction to rectify to Oracle Building Corporation Pty Ltd in respect of 26 Wolfik Drive, Goodna in the State of Queensland is set aside and replaced with the decision not to issue a direction to rectify.

In GAR286-18:

  1. The application for review of a direction to rectify made by Mr Yates on 21 February 2018 in respect of 26 Wolfik Drive, Goodna in the State of Queensland is dismissed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BUILDING – INTERNAL REVIEW OF DECISION TO ISSUE A DIRECTION TO RECTIFY – DIRECTION TO RECTIFY – whether Tribunal ‘functus officio’

GENERAL ADMINISTRATIVE REVIEW – BUILDING – INTERNAL REVIEW OF DECISION TO ISSUE A DIRECTION TO RECTIFY – whether a reviewable decision – defective work – consequential damage – where rectification work already undertaken by third party – whether fair to give direction to rectify – whether Tribunal should extend time for giving direction to rectify – where no application to extend time

GENERAL ADMINISTRATIVE REVIEW – BUILDING – DIRECTION TO RECTIFY – whether a reviewable decision

Acts Interpretation Act 1954 (Qld), s.39, s.39A

Building Act 1975 (Qld), s.14(2)

Queensland Building and Construction Commission Act 1991 (Qld) s.72, s.72A(4), s.86(1)(e), s.86E(a), s.86E(b), s.86F(1)(b), s.87, s.109A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s.20, s.24(1), 47

Doolan v Queensland Building and Construction Commission [2017] QCAT 58

Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 42

McNab Constructions Pty Ltd v Queensland Building Services Authority [2013] QSC 57

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (17 January 2019)

Paul Wayne Townsend v Queensland Building and Construction Commission [2019] QCAT 239

Queensland Building & Construction Commission v Whalley [2018] QCATA 38

Stephens & Anor v Queensland Building and Construction Commission [2018] QCAT 281

APPEARANCES &

REPRESENTATION:

Applicant:

C Boloran, instructed by Kilmartin Knyvett Lawyers

Respondent:

S Monaghan, in-house lawyer of the Queensland Building and Construction Commission, with N Glen, in-house lawyer of the Queensland Building and Construction Commission

REASONS FOR DECISION

Introduction

  1. [1]
    Oracle Building Corporation Pty Ltd (‘Oracle’) constructed a new residential dwelling (‘the Works’) at 26 Wolfik Drive, Goodna in the State of Queensland (‘the Property’) under a contract with the Property owner (‘the Owner’).
  2. [2]
    The Owner made a complaint (‘the Complaint’) to the Queensland Building and Construction Commission (‘QBCC’) about defective building work, namely a water leak and consequential damage.
  3. [3]
    Oracle has made separate applications for review of two decisions made by QBCC concerning rectification of defective building work and consequential damage which is the subject of the Complaint.
  4. [4]
    Proceeding GAR092-18 is Oracle’s application for review of a decision of Ms White on 19 February 2018 (‘the Internal Review Decision’) to issue a direction to rectify under section 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  5. [5]
    Proceeding GAR286-18 is Oracle’s application for review of a direction to rectify defective work made by Mr Yates on 21 February 2018 (‘the Direction to Rectify’).
  6. [6]
    On 17 January 2019, another Member of the Tribunal directed[1] that proceeding GAR092-18 and proceeding GAR286-18 be consolidated into a single proceeding pursuant to section 54 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  7. [7]
    On 30 May 2019, I directed that proceeding GAR092-18 and proceeding GAR286-18 be deconsolidated and separated into separate proceedings but that they be heard and decided together. The parties did not oppose that direction.

Material considered by the Tribunal

  1. [8]
    The parties have raised numerous factual and legal issues.
  2. [9]
    A considerable amount of evidence and submissions has been given to and considered by the Tribunal in relation to the proceedings.
  3. [10]
    Oracle relies on the following material:
    1. (a)
      Application for review of the Internal Review Decision;
    2. (b)
      Application for review of the Direction to Rectify;
    3. (c)
      Affidavits of Craig Michael Ryan dated 6 March 2019, 3 July 2019 and 24 May 2019;
    4. (d)
      Affidavit of Stephen John Knyvett dated on 24 May 2019;
    5. (e)
      Affidavit of Aditya Zutshi dated 6 March 2019;
    6. (f)
      Statutory declaration of Wayne Marshall dated 6 March 2019;
    7. (g)
      Affidavit of Marjanne Lust dated 29 May 2019; and
    8. (h)
      Applicant’s written submissions dated 30 May 2019, 6 June 2019 and 29 June 2019.
  4. [11]
    QBCC relies on the following material:
    1. (a)
      Bundle of documents filed 30 May 2018;
    2. (b)
      Submissions on consolidation of proceedings GAR092-18 and GAR286-18 filed on 14 December 2018;
    3. (c)
      Statement of evidence of Daniel Wesley Yates dated 25 March 2019;
    4. (d)
      Statement of Evidence of Steven John Noble dated 28 March 2019;
    5. (e)
      Affidavit of Renee-Maree Cronin dated 8 May 2019;
    6. (f)
      Affidavit of Nicholas Luke Glen dated 16 May 2019;
    7. (g)
      Affidavits of June Mary Blaney dated 16 May 2019;[2] and
    8. (h)
      Respondent’s written submissions dated 30 May 2019 and 14 June 2019.
  5. [12]
    The Tribunal heard oral evidence of Oracle’s witnesses:
    1. (a)
      Mr Ryan;
    2. (b)
      Mr Knyvett;
    3. (c)
      Ms Zutshi;
    4. (d)
      Mr Marshall; and
    5. (e)
      Ms Lust.
  6. [13]
    The Tribunal also heard oral evidence of QBCC’s witnesses:
    1. (a)
      Mr Noble;
    2. (b)
      Ms Blaney; and
    3. (c)
      Ms Cronin.

The statutory framework

Jurisdiction of the Tribunal to review decisions

  1. [14]
    Section 9 of the QCAT Act gives the Tribunal jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.
  2. [15]
    The enabling Act in this matter is the QBCC Act in force at the date of the decisions, being 19 February 2018 and 21 February 2018.
  3. [16]
    Section 86(1)(e) of the QBCC Act provides that a decision of QBCC to give a direction to rectify or remedy or not to give the direction is a reviewable decision.
  4. [17]
    Section 86E(b) of the QBCC Act provides that an internal review decision regarding a matter under section 86(1)(e) is reviewable by external review to the Tribunal.
  5. [18]
    Section 86F(1)(b) of the QBCC Act provides that a decision to give a person a direction to rectify or remedy, and any finding by QBCC in arriving at that decision, is not a reviewable decision if:
    1. (i)
      28 days have elapsed from the date the direction was served on a person and the person has not, within that time, applied to the tribunal for a review of the decision; and
    2. (ii)
      [QBCC] has—
  1. (A)
    started a disciplinary proceeding against the person under part6A; or
  2. (B)
    served a notice on the person advising a claim under the statutory insurance scheme has been approved in relation to the building work relevant to the direction; or
  3. (C)
    started a prosecution, or served an infringement notice, for an offence against section73 in relation to the direction.
  1. [19]
    Section 87 of the QBCC Act provides that a person affected by a reviewable decision of QBCC may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision.
  2. [20]
    Section 20 of the QCAT Act provides that the purpose of the review is to produce the correct and preferable decision. The Tribunal is required to hear and decide the review by way of a fresh hearing on the merits.
  3. [21]
    Section 24(1) of the QCAT Act provides that the orders that can be made by the Tribunal upon review are:
  1. (a)
    Confirm or amend the decision; or
  2. (b)
    Set aside the decision and substitute its own decision; or
  3. (c)
    Set aside the decision and return the matter to QBCC to reconsider the decision, with directions the Tribunal considers appropriate.

Power of QBCC to direct rectification

  1. [22]
    Section 71J of the QBCC Act provides that a consumer may, within 12 months of becoming aware of defective or incomplete building work or consequential damage to the property, request that QBCC give a direction to rectify the defective or incomplete building work. ‘Consumer’ is defined under Schedule 2 of the QBCC Act to mean a person for whom building work is carried out.
  2. [23]
    Section 72(1) and (2) of the QBCC Act provide that QBCC may direct rectification of building work and remediation of consequential damage if it is of the opinion that building work is defective or incomplete or consequential damage has been caused by or as a consequence of carrying out building work.
  3. [24]
    Schedule 2 of the QBCC Act defines ‘building work’ to include the erection or construction of a ‘building’.
  4. [25]
    Schedule 2 of the QBCC Act defines ‘defective’ in relation to building work to include ‘faulty or unsatisfactory’.
  5. [26]
    Section 71H of the QBCC Act defines ‘consequential damage’ as:

…damage –

  1. (a)
    Caused by, or as a consequence of, carrying out building work at a building site (the relevant site), regardless of any intention, negligence or recklessness of the person carrying out the work; and
  2. (b)
    To a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.
  1. [27]
    Section 72(3) of the QBCC Act provides that, in deciding whether to give a direction, QBCC may take into consideration all the circumstances it considers are reasonably relevant and is not limited to a consideration of the terms of the contract for carrying out the building work including the terms of any warranties.
  2. [28]
    Section 72(5) of the QBCC Act provides that QBCC is not required to direct rectification of building work and remediation of consequential damage if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
  3. [29]
    Section 72A(4) of the QBCC Act provides that a direction to rectify or remedy cannot be given more than six years and six months after the building work to which the direction relates was completed or left in an incomplete state, unless the Tribunal is satisfied that there is in the circumstances sufficient reason for extending the time for giving the direction and extends the time accordingly.

Relevant Policies

  1. [30]
    In exercising the discretion to direct building work, QBCC (and the Tribunal standing in its shoes) is required to consider and apply relevant policies.[3]
  2. [31]
    The QBCC Rectification of Building Work Policy (‘Rectification Policy’) which came into force on 10 October 2014, and was current when the decisions were made, is a relevant statutory instrument which the Tribunal is required to consider and apply in this case.[4]
  3. [32]
    The Rectification Policy relevantly provides:

Rectification of defective building work

  1. It is a policy of the Queensland Building and Construction Board that a building contractor who carries out defective building work should be required to rectify that work.

...

Defective building work means building work that is faulty or unsatisfactory, and includes, for example, work that:

  1. does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard;
  2. involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions.

Non-structural defective building work means defective building work (other than structural defective work or residential construction work causing subsidence) that is faulty or unsatisfactory because:

  1. it does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; or
  2. it has caused a settling in period defect in a new building.

Structural defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following:

  1. adversely affects the structural performance of a building;
  2. adversely affects the health or safety of persons residing in or occupying a building;
  3. adversely affects the functional use of a building;
  4. allows water penetration into a building.
  1. [33]
    QBCC’s Standards & Tolerances Guide (‘STG Guide’), in effect as at February 2016, is applicable to building work under the QBCC Act. The STG Guide relevantly states:

The standards and tolerances documented in the Guide are intended to be consistent with and complement other relevant Acts, regulations, BCA requirements, Australian Standards and manufacturer’s installation requirements. Where there is any difference or contradiction between the Guide and an Act, regulation, the BCA, Australian Standards, manufacturer’s installation requirements; all of these take precedence over the Guide.[5]

  1. [34]
    The STG Guide further provides:

11.6 Flexible sealants to junctions

Within 12 months of completion of the works, flexible and waterproof sealants to junctions are defective if they are not installed when required by the BCA and AS3958.1 Ceramic tiles – Guide to the installation of ceramic tiles, or in accordance with the requirements of the manufacturer.[6]

  1. [35]
    Those policies and references in them to provisions of the Building Act 1975 (Qld) (‘Building Act’), the Building Code of Australia (‘BCA’) and applicable Australian Standards (‘AS’) are considered in more detail later.

Factual background

  1. [36]
    The factual background is largely not in dispute and I find on the evidence before me that the following facts occurred.

Background

  1. [37]
    On 1 July 2010, Oracle and the Owner entered into a contract for the construction of the Works at the Property.
  2. [38]
    Oracle achieved practical completion of the Works on 21 December 2011.
  3. [39]
    At all relevant times, Oracle’s actual postal address, and its postal address which was recorded on the QBCC Licensee Register, was PO Box 1152, Springwood Qld 4127 (‘Oracle’s Postal Address’).

The Owner’s Complaint

  1. [40]
    On 21 August 2017, approximately five years and eight months after practical completion of the Works, the Owner lodged the Complaint with QBCC. The Complaint was:
    1. (a)
      Item 1: Water leak in bedroom from adjoining bathroom;
    2. (b)
      Item 2: Carpets and floors possibly damaged due to water leakage; and
    3. (c)
      Item 3: Timber and walls damaged due to water leakage.
  2. [41]
    The Complaint stated that those items first came to the Owner’s attention on 1 August 2017.
  3. [42]
    On 16 November 2017, Mr Daniel Yates, QBCC Building Inspector, inspected the Property and subsequently prepared an initial inspection report (‘the Yates Report’). In relation to Complaint Item 1 (namely, ‘water leak in bedroom from adjoining bathroom’), Mr Yates determined that that there was water ingress which resulted in severe damage and deterioration to structural building elements. Mr Yates determined that the water ingress was a consequence of defective weatherproofing surrounding a gas hot water system on an external wall.
  4. [43]
    On 27 November 2017, Mr Yates decided to issue Oracle with a direction to rectify, No.0102840 (‘Original Decision’).
  5. [44]
    QBCC sent the Original Decision to Oracle by post to Oracle’s Postal Address.

The Internal Review Application

  1. [45]
    On 12 December 2017, Oracle applied to QBCC for internal review of the Original Decision pursuant to section 89A of the QBCC Act.
  2. [46]
    On 12 February 2018, Mr Noble, QBCC Senior Technical Review Officer, conducted an inspection and subsequently prepared a ‘Desktop/Inspection Report’ dated 16 February 2018 (‘the Noble Report’). In relation to Complaint Item 1 (namely, ‘water leak in bedroom from adjoining bathroom’), Mr Noble determined that there was a water leak which was caused by water entering a wall shared between a bedroom and bathroom through a split in the sealant between the rim of the bathtub and tiling, and that the split had occurred because the bathtub itself was not sufficiently supported around its perimeter. Mr Noble determined that defective weatherproofing surrounding the gas hot water system was not a source of water ingress.

The Internal Review Decision

  1. [47]
    On 19 February 2018, Ms Debbie White, QBCC Senior Internal Review Officer, made the Internal Review Decision, which was a decision (under section 72 of the QBCC Act) to issue a direction to rectify defects in relation to Complaint Item 1. It relevantly stated: ‘I have decided to issue a DTR for complaint item number 1...’
  2. [48]
    On 19 February 2018, QBCC sent the Internal Review Decision to Oracle’s lawyers, Mr Steve Knyvett, of Kilmartin Knyvett Lawyers.[7]

The Direction to Rectify

  1. [49]
    On 21 February 2018, Mr Yates made the Direction to Rectify. It referred to the Internal Review Decision and directed Oracle to rectify defects in relation to Complaint Item 1 (‘Rectification Work’), namely:

The waterproofing membrane and sealant system has detached at the bath interface, permitting water to migrate below the waterproofing membrane and does not comply with NCC Vol 2 2011 Sec 3.8.1. This is resulting in localized adverse deterioration of building elements and loss of amenity to the adjoining bedroom.

  1. [50]
    The Direction to Rectify required Oracle to complete the Rectification Work by 26 March 2018.

Dispute as to service of the Direction to Rectify on Oracle

  1. [51]
    As will be discussed in more detail later, there is a dispute between the parties as to whether, and if so when, QBCC served the Direction to Rectify on Oracle. In particular, there is a dispute as to whether the Direction to Rectify was given to Oracle outside of the time limit prescribed in section 72A(4) of the QBCC Act.
  2. [52]
    QBCC asserts that it served the Direction to Rectify on Oracle on or about 21 February 2018 by post addressed to Oracle’s Postal Address.
  3. [53]
    There is no dispute that on 20 April 2018, QBCC wrote to Oracle at Oracle’s Postal Address and advised that Oracle had failed to comply with the Direction to Rectify.
  4. [54]
    A Directions Hearing held by the Tribunal on 26 July 2018 directed ‘[t]he Respondent to confirm if a direction to rectify has been issued with respect to the internal review decision by 10 August 2018, 4.00pm’.
  5. [55]
    There is no dispute that Oracle received the Direction to Rectify from QBCC on 26 July 2018, following the Directions Hearing.
  6. [56]
    Oracle denies that it received the Direction to Rectify prior to 26 July 2018.
  7. [57]
    Oracle submits that the Direction to Rectify was given to Oracle outside the statutory time limit prescribed in section 72A(4) of the QBCC Act, which expired on 21 June 2018. This will be considered later.

Applications to the Tribunal

  1. [58]
    On 15 March 2018, Oracle applied to the Tribunal to review the Internal Review Decision, which is Tribunal proceeding GAR092-18.
  2. [59]
    On 23 August 2018, Oracle applied to the Tribunal to review the Direction to Rectify, which is Tribunal proceeding GAR286-18.
  3. [60]
    On 17 January 2019, another Member of the Tribunal decided two applications for miscellaneous matters made by QBCC (‘the Miscellaneous Matters Decision’).[8] The learned Member dismissed the applications for miscellaneous matters after deciding them on the papers on the basis of written submissions provided by the parties. One of the applications for miscellaneous matters determined by the Miscellaneous Matters Decision was an application that proceeding GAR286-18 be dismissed. That is the subject of some submissions in these proceedings and will be considered in more detail later.
  4. [61]
    Further, in the Miscellaneous Matters Decision, the learned Member directed that proceeding GAR092-18 and proceeding GAR286-18 be consolidated into a single proceeding pursuant to section 54 of the QCAT Act.[9]
  5. [62]
    On 30 May 2019, I directed that proceeding GAR092-18 and proceeding GAR286-18 be deconsolidated and separated into separate proceedings but that they be heard and decided together. The parties did not oppose that direction.

Issues for Determination

  1. [63]
    I will consider separately:
    1. (a)
      The review of the Internal Review Decision – Proceeding GAR092-18; and
    1. (b)
      The review of the Direction to Rectify – Proceeding GAR286-18.
  2. [64]
    For those reviews, the issues to be determined are:
    1. (a)
      Is the Internal Review Decision a ‘reviewable decision’?
    2. (b)
      Is Oracle affected by the Internal Review Decision?
    3. (c)
      Is the work ‘building work’?
    4. (d)
      Did Oracle carry out the ‘building work’?
    5. (e)
      Is the building work ‘defective’?
    6. (f)
      Should the Tribunal exercise its discretion to give a direction to direct rectification of building work and remediation of consequential damage?
  3. [65]
    However before I deal with those matters, I will consider a preliminary issue which has been raised by the parties, which is whether the Tribunal is ‘functus officio’ in respect of the matters decided and findings made by the Miscellaneous Matters Decision on 17 January 2019.

Consideration of preliminary issue: is the Tribunal ‘functus officio’ in respect of the matters decided and findings made by the Miscellaneous Matters Decision on 17 January 2019?

  1. [66]
    The issue that I have to determine is whether the Tribunal is ‘functus officio’ in respect of matters decided and findings made by the learned Member in the Miscellaneous Matters Decision. I will deal with this as a general preliminary issue as it deals with issues of fact that could potentially be relevant to both GAR286-18 and GAR092-18.
  1. [67]
    Oracle raised this issue in the context that Oracle denies that it received the Direction to Rectify prior to 26 July 2018 and submits that the Direction to Rectify was given to it outside the statutory time limit prescribed in section 72A(4) of the QBCC Act, which expired on 21 June 2018.
  1. [68]
    As explained above, the Miscellaneous Matters Decision decided an application for miscellaneous matters which sought that proceedings GAR286-18 be dismissed. It had been submitted that there were two grounds on which proceedings GAR286-18 should be dismissed: firstly, there was no further decision capable of review by the Tribunal and, secondly, the application for review was lodged outside of the 28 day period prescribed in section 33(3) of the QCAT Act (having regard to the factual issue of when the Direction to Rectify was served on Oracle).
  2. [69]
    In deciding the application, the learned Member was required to determine whether it was appropriate to make a decision under section 47 of the QCAT Act, which confers power on the Tribunal to dismiss a proceeding if it considers that the proceeding was frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The Miscellaneous Matters Decision was made on the papers after considering written submissions.
  3. [70]
    The learned Member dismissed the application that proceeding GAR286-18 be dismissed and gave the following reasons:[10]

[10] On 14 December 2018, the QBCC filed an application for miscellaneous matters in proceedings GAR 286-18 seeking the dismissal of those proceedings.

[11] Section 86(1)(e) of the [QBCC Act] provides that a reviewable decision includes “a decision to give a direction to rectify or remedy or not to give the direction”.

[12] The QBCC submitted that “[t]here is no further decision capable of review by the Tribunal” in proceedings GAR 286-18. However, it seems to me that the decisions on 19 February 2018 and 21 February 2018 are both capable of falling within the scope of s 86(1)(e) of the QBCC Act.

[13] There was nothing preventing the QBCC from deciding to issue a direction to rectify and issuing a direction to rectify in a single step. However, the QBCC has ipso facto made two separate decisions on two separate dates, and both are capable of review.

[14] The QBCC has also submitted that the application for review was lodged outside of the 28 day period prescribed in s 33(2) of the QCAT Act.

[15] Oracle has submitted that it did not receive [the] Direction to Rectify and/or Complete No. 0103082 prior to 26 July 2018. I note that on the same day the Tribunal directed that:

The Respondent to confirm if a direction to rectify has been issued with respect to the internal review decision...

[16] The QBCC has not provided any evidence that the direction to rectify was served earlier. In these circumstances, I accept that Oracle was not notified of the direction to rectify until 26 July 2018. The application to review the decision was therefore filed within time on the 28th day.

[17] I dismiss the application for miscellaneous matters filed on 14 December 2018.

  1. [71]
    Oracle submits that:
    1. (a)
      The Tribunal is now ‘functus officio’ in respect of particular matters determined by the Miscellaneous Matters Decision, being firstly, that Oracle’s application GAR286-18 was brought within time, and secondly, that Oracle was served with the Direction to Rectify on 26 July 2018. Oracle submits that as the Tribunal is ‘functus officio’, it cannot now reconsider and re-determine those issues;
    2. (b)
      If QBCC did not accept the Miscellaneous Matters Decision, it could have appealed the decision under section 142 of the QCAT Act. Alternatively, if QBCC wished to adduce some evidence of service that the direction to rectify was served earlier, it could have applied to reopen the proceedings in relation to that decision under section 138 of the QCAT Act. However, it did neither of those things;
    3. (c)
      QBCC now seeks to have the Tribunal reconsider the Miscellaneous Matters Decision in light of fresh evidence which, it submits, was in any event always available to QBCC with no explanation as to why it was not filed earlier;
    4. (d)
      QBCC’s attempt to adduce further evidence amounts to a collateral challenge of the Miscellaneous Matters Decision, made on the papers after a contested hearing where both parties were legally represented and where QBCC did not seek to appeal or re-open the Miscellaneous Matters Decision;
    5. (e)
      Having regard to the decision of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 603 to 605, the Tribunal is now ‘functus officio’ in respect of the findings and matters decided by the Miscellaneous Matters Decision and does not now have the power to reconsider those matters;
    6. (f)
      Even if that was not the case, the objects of the QCAT Act and the manner in which the objects should be achieved, weigh against the Tribunal proceeding to re-decide the issue of when QBCC purported to serve the Direction to Rectify;
    7. (g)
      A decision by the Tribunal to allow the evidence and put in issue a matter which has already been decided by the Tribunal would invite future litigants to continue to re-litigate discrete matters decided on an interim basis at a final hearing, thus increasing the time and cost required to decide the matter; and
    8. (h)
      In any event, the Tribunal should not admit the further evidence to the extent that they speak to service on Oracle of the Direction to Rectify.
  1. [72]
    QBCC submits that:
    1. (a)
      The principle of ‘functus officio’ ‘should not be strictly applied if the Tribunal has failed to discharge its statutory function’ and ‘there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation’: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 603, per Gleeson J quoting Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 862, per Sopinka J;
    2. (b)
      The findings of the learned Member in the Miscellaneous Matters Decision as to the receipt of the Direction to Rectify was made in the context of an interlocutory application brought by QBCC seeking that GAR286-18 be struck out on bases which included that the application was filed out of time. The power to decide that application is governed by section 47 of the QCAT Act;
    3. (c)
      In effect, Oracle is seeking to rely on the Miscellaneous Matters Decision as a final determination on a merits review of the decision of actually giving the Direction to Rectify. The findings of the learned Member in the Miscellaneous Matters Decision went solely to the question of whether the application was brought in time. By contrast, in reaching a determination as to the merits of the Direction to Rectify, the Tribunal must have regard to sections 18, 19, 20 and 21 of the QCAT Act and to the QBCC Act; and
    4. (d)
      Proper regard to the statutory requirements for a merits review is not apparent in the Miscellaneous Matters Decision. In conducting a merits review, the Tribunal should now not be bound by the Miscellaneous Matters Decision.
  2. [73]
    In respect of a decision made by a tribunal, the expression ‘functus officio’ means that the tribunal has exhausted its power in relation to the decision and cannot reconsider the decision. Whether the tribunal is ‘functus officio’ depends on the terms of the statute under which the tribunal acts and on whether the decision is a valid exercise of the tribunal’s power.[11]
  3. [74]
    In Queensland Building & Construction Commission v Whalley [2018] QCATA 38, the Appeal Tribunal found that the Tribunal constituted for determining a review (of a decision to give a direction to rectify under the QBCC Act) erred by simply determining a list of issues on the papers as directed by another Tribunal member at an earlier compulsory conference. The Appeal Tribunal found that (at [30] – [31]):

The learned Member here was answering the narrative of the list of issues for determination arising out of the earlier compulsory conference which representatives of both sides attended and agreed was the list of issues for determination. Regardless of that misleading step, the course adopted by the learned Member was wrong. The Tribunal constituted for the review proceeding was ultimately responsible for determining the matter. The QCAT Act mandates, amongst other things, that the Tribunal conduct a fresh hearing on the merits, and this may involve, in exercising its review function, identifying relevant issues and making findings of fact to determine the review proceedings. The learned Member failed to conduct a merit review required by the QCAT Act. There was in consequence an error of law and the decision of the learned Member cannot stand.

We find there is an error in the Tribunal’s final decision by confining itself to only determine the settled list of issues. The learned Member has failed to exercise the Tribunal’s review jurisdiction and produce the correct and preferable decision...

  1. [75]
    In the Miscellaneous Matters Decision, the learned Member was required to consider whether it was appropriate to make a decision under section 47 of the QCAT Act, which confers power on the Tribunal to dismiss a proceeding if it considers that the proceeding was frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The learned Member made findings and decision on the papers after considering written submissions and without evidence being tested by cross-examination.
  2. [76]
    By contrast, the subject of these reviews is the Internal Review Decision and the Direction to Rectify. In determining these reviews, the Tribunal is required to act in accordance with sections 18, 19, 20, and 21 of the QCAT Act (and with the QBCC Act) which includes a fresh hearing on the merits to produce the correct and preferable decision.
  3. [77]
    Having regard to the matters set out above, I am not satisfied that, in determining these reviews, I am required to be bound by the findings of the learned Member in the Miscellaneous Matters Decision. To satisfy the Tribunal’s obligation to conduct a fresh hearing on the merits and produce the correct and preferable decision in accordance with sections 18, 19, 20, and 21 of the QCAT Act, I consider that it is necessary for me to independently determine relevant issues having regard to the evidence currently presented to the Tribunal, notwithstanding that they may have been previously determined by the learned Member on the papers in the Miscellaneous Matters Decision for the purposes of a decision under section 47 of the QCAT Act.

Consideration of the application for review of the Internal Review Decision – Proceeding GAR092-18

  1. [78]
    The Internal Review Decision, which is the subject of proceeding GAR092-18 of this Tribunal, is a decision of Ms White on 19 February 2018 (made on a QBCC internal review) to issue a direction to rectify under section 72 of the QBCC Act.

Is the Internal Review Decision a ‘reviewable decision’?

  1. [79]
    Oracle submits that the Internal Review Decision, being a decision by QBCC to direct rectification, is a ‘reviewable decision’ pursuant to section 86E(b) of the QBCC Act.
  1. [80]
    QBCC does not appear to dispute that the Internal Review Decision is a ‘reviewable decision’.[12]
  2. [81]
    By section 86E(b) of the QBCC Act, an internal review decision regarding a matter under section 86(1)(e) is reviewable by external review to the Tribunal.
  3. [82]
    By section 86(1)(e) of the QBCC Act, a decision of QBCC to give a direction to rectify or remedy or not to give the direction is a ‘reviewable decision’.
  4. [83]
    I am satisfied on the evidence that the Internal Review Decision was an internal review decision made upon internal review of the Original Decision which was itself a decision to give a direction to rectify.
  5. [84]
    On that basis, I am satisfied that the Internal Review Decision is a reviewable decision pursuant to both sections 86E(b) and section 86(1)(e) of the QBCC Act.

Is Oracle affected by the Internal Review Decision?

  1. [85]
    Oracle submits that it, being the builder directed to rectify as a result of the Internal Review Decision, is affected by the decision and is therefore entitled to apply for review pursuant to section 87 of the QBCC Act.
  2. [86]
    QBCC does not appear to dispute that Oracle is affected by the Internal Review Decision.
  3. [87]
    By section 87 of the QBCC Act, a person affected by a reviewable decision of QBCC may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision.
  4. [88]
    I am satisfied on the evidence that Oracle is the builder directed to rectify as a result on the Internal Review Decision and is therefore affected by the decision.
  5. [89]
    On that basis, I am satisfied that Oracle is entitled to apply for review of the Internal Review Decision pursuant to section 87 of the QBCC Act.

Is the work ‘building work’?

  1. [90]
    Oracle accepts that, for the purpose of section 72 of the QBCC Act, the Works is ‘building work’.[13]
  2. [91]
    I am satisfied on the evidence that the Works is construction of a residential dwelling at the Property, which included construction of a bathroom, installation of a bath tub, waterproofing, tiling and sealant.
  3. [92]
    On that basis, I am satisfied that the Works is ‘building work’ for the purpose of section 72 of the QBCC Act.

Did Oracle carry out the ‘building work’?

  1. [93]
    Oracle accepts that, for the purpose of section 72 of the QBCC Act, it carried out the ‘building work’.[14]
  2. [94]
    In any event, I am satisfied on the evidence that Oracle carried out the ‘building work’.
  3. [95]
    On that basis, I am satisfied that Oracle carried out the ‘building work’ for the purpose of section 72 of the QBCC Act.

Is the building work ‘defective’?

  1. [96]
    The Complaint is:
    1. (a)
      Item 1: Water leak in bedroom from adjoining bathroom;
    2. (b)
      Item 2: Carpets and floors possibly damaged due to water leakage; and
    3. (c)
      Item 3: Timber and walls damaged due to water leakage.
  2. [97]
    There is no evidence nor submissions which disputes the existence of a water leak in a bedroom from the adjoining bathroom nor consequent localised damage.
  3. [98]
    The issue in dispute is whether the water leak and consequent damage is, or is caused by or as a consequence of, ‘defective’ building work.
  4. [99]
    The term ‘defective’ is defined by Schedule 2 of the QBCC Act to mean ‘in relation to building work, includes faulty or unsatisfactory’.
  5. [100]
    That definition is applied in the Rectification Policy which states that examples of ‘faulty or unsatisfactory’ work include work that does not comply with the Building Act 1975 (Qld) (‘Building Act’), the Building Code of Australia (‘BCA’) or an applicable Australian Standard.
  6. [101]
    Section 14(2) of the Building Act states that ‘building work complies with the BCA or QDC (the code) only if it complies with all relevant performance requirements under the code’.
  7. [102]
    Health and Amenity requirement Part 3.8.1 (Wet Areas) of BCA (2011),[15] Volume 2, relevantly states:

3.8.1 WET AREAS

Appropriate Performance Requirements:

Where an alternative system for protecting wet areas in a building is proposed to that described in Part 3.8.1, that proposal must comply with –

  1. (a)
    Performance requirement P2.4.1; and
  2. (b)
    the relevant Performance Requirement determined in accordance with 1.0.10.

3.8.1.0

Performance Requirement P2.4.1 is satisfied for wet areas in Class 1 and 10 buildings if they are waterproof or water resistant in accordance with AS 3740 – Waterproofing of wet areas in residential buildings.

3.8.1.1 Application

Compliance with this acceptable construction practice satisfies Performance Requirement P2.4.1 for wet areas provided the wet area

  1. (c)
    is protected in accordance with the appropriate requirements of 3.8.1.2 to 3.8.1.27; and
  1. (d)
    complies with the appropriate details described in Figures 3.8.1.1 to 3.8.1.16.

3.8.1.2 Wet Areas

Wet areas within a building must be waterproof or water resistant in accordance with Table 3.8.1.1

3.8.1.7 Baths and Spas

  1. (a)
    Baths and spas must be supported to prevent distortion and cracking.
  2. (b)
    Baths and spas recessed into the wall must be installed to allow the water resistant surface materials of the wall to pass down inside the rim of the bath or spa (see Figure 3.8.1.8).
  3. (c)
    The integrity of the structure must be maintained when the bath or spa is installed.
  1. [103]
    Table 3.8.1.1 of BCA (2011), Volume 2, relevantly states:

Vessels or area where the fixture is installed

Floors and horizontal surfaces

Walls

Wall junctions and joints

Penetrations

Inserted baths

N/A for floor under bath.

Waterproof entire shelf area, incorporating waterstop under the bath lip and project not less than 5mm above the tile surface (see Figure 3.8.1.8(c)).

N/A for wall under bath.

Waterproof to not less than 150mm above the lip of the bath.

N/A for wall under bath.

Waterproof all tap and spout penetrations where they occur in a horizontal surface.

  1. [104]
    Section 3.8 of Australian Standard AS 3740-2010 (‘AS 3740’) provides:

Baths and spas shall be supported to prevent distortion and cracking. Baths and spas that are recessed into the wall shall be installed to allow the water-resistant surface materials of the wall to pass down inside the rim of the bath or spa.

NOTE: For typical bath/spa wall junctions see Figures 3.2(a) and 3.2(b).

When installing baths and spas, the integrity of the structure shall be maintained.

For insert baths, a water stop shall be installed around the periphery.

NOTE: See Figure 3.2(c).

  1. [105]
    Appendix A of AS 3740 relevantly provides:

DESIGN CONSIDERATIONS IN WET-AREA WATERPROOFING

(Informative)

A1 SCOPE

This Appendix provides information that should be considered when designing waterproofing systems for wet areas in domestic buildings and includes guidelines for dealing with the degree of risk, and the types of materials used and their locations in the construction.

A2 LEAKAGE THROUGH FINISHES

Water may penetrate wall and floor finishes in wet areas, depending on their frequency, the intensity and the length of time these surfaces are exposed to water; if not intercepted, water may damage the moisture-sensitive materials lying beneath, and sometimes reach adjoining rooms and their finishes. Consequently, careful attention should be paid to the design and installation of all materials, components and systems to prevent damage by water.

Water penetration mainly occurs at joints. Grouted joints will often shrink, producing cracks that allow water to pass through. At floor and wall junctions, these cracks can be caused or enlarged by movement of the structure, substrate or finishes.

  1. [106]
    Sections 11.6, 13.1 and 13.3 of the STG Guide respectively provide:

11.6 Flexible sealants to junctions

Within 12 months of completion of the works, flexible or waterproof sealants to junctions are defective if they are not installed when required by the BCA and AS 3958.1 Ceramic tiles – Guide to the installation of ceramic tiles, or in accordance with the requirements of the manufacturer.

13.1 Wet areas

Water proofing to internal wet areas is defective if not installed in accordance with the requirements of the BCA and AS 3740 including Amendment 1 Waterproofing of domestic wet areas.

Internal wet areas are not defective if the leak or poor performance is caused by actions or inactions of the owner or other persons outside of the control of the contractor.

  1. [107]
    QBCC submits that the defective work itemised in the Complaint is structural defective building work and/or consequential damage for the following reasons:
    1. (a)
      It allows water penetration into the dwelling at the Property;
    2. (b)
      It adversely affects the health and safety of the persons residing in or occupying the dwelling;
    3. (c)
      It adversely affects the functional use of the dwelling;
    4. (d)
      Mr Noble found that installation of the bathtub did not comply with Part 3.8.1.7 of the BCA because the bath was not supported to prevent distortion and cracking and was not installed to allow the water resistant surface material of the wall to pass down inside the rim of the bath; and
    5. (e)
      Mr Noble found that any degradation of silicone sealant is secondary to, and was in fact caused by, the bathtub being inadequately supported to the perimeter, which permitted a downward deflection of the bathtub, allowing water migration through the bath and wall tile sealant detachment from the waterproofing membrane and sealant system, which was a consequence of failing to comply with the BCA.
  2. [108]
    Oracle submits that the defective work itemised in the Complaint is not structural defective building work nor consequential damage for the following reasons:
    1. (a)
      Mr Noble’s evidence is insufficient to support a finding of defective structural building work because:
      1. He did not conduct any destructive investigations to observe how the bath was supported or what waterproofing had been undertaken within the wall or under the lip of the bath;
      2. His evidence could not speak to when the split between the sealant and bathtub arose, under what conditions it occurred, or when steps were taken to address damage consequential to that split; and
      3. His oral evidence was equivocal about the timing of the split and when the degradation of pine framing occurred, indicating it was highly possible that the split might have occurred first prior to the degradation of frame supporting the bath via water ingress;
    2. (b)
      In contrast, the unchallenged evidence of Mr Ryan was that:
      1. The bathroom had been built to specification, manufacturer recommendations and in accordance with relevant building codes; and
      2. Regular use of the bath (which on the evidence of Mr Noble, was likely to have occurred) can cause compression of timber used to support it;
    3. (c)
      The evidence supports a finding that the bath was ‘properly constructed at the time of completion of the Building but suffered degradation of the pine timber supporting it for any number of reasons’; and
    4. (d)
      A lack of direct evidence about the state of timber supports and bath junctions at the time of Mr Noble’s inspection means that the Tribunal could not be reasonably satisfied, on balance, that there was defective structural building work.
  1. [109]
    I have carefully considered all of the evidence in relation to the issue.
  2. [110]
    Mr Noble gave evidence that he investigated the bedroom which adjoined the bathroom by removing the skirting and pulling back the carpet. He noted that there was ‘overwhelming evidence’ of water egress through the wall between the bathroom and the adjoining bedroom over a period of time. He noted extensive dry-rot in those areas which indicated significant water migration over an ‘extended period of time’ being a ‘period of years’. He noted that someone had placed plastic bags under the carpet in an apparent attempt to stop the carpet soaking up water, however he was not sure when that had been done. Mr Noble also investigated the bathroom by splashing water and by filling the bathtub with more than 100mm of water. He noted that, when the bathtub was filled with water, a split in a section of silicone sealant at the interface of the bathtub and tiles became apparent. He believes that indicates a downward deflection of the bathtub when weight was applied and detachment of the waterproofing membrane and sealant system which has provided an access point for water. He believes that the leak occurred as a consequence of installation of the bathtub not complying with Part 3.8.1.7 of the BCA because the bath was not supported to the perimeter to prevent distortion and cracking and because it was not installed to allow the water resistant surface material of the wall to pass down inside the rim of the bath. Mr Noble believes that inadequate support of the bathtub to the perimeter permitted a downward deflection of the bathtub when weight was applied. He believes that detachment of the waterproofing membrane and sealant system allowed water migration through it. Mr Noble believes that, over a period of time, further degradation of the bath support would have occurred as a result of dry-rot, which would have permitted further downward deflection of the bathtub. He believed it was ‘reasonable’ that the leak remained undetected for a period of time. Mr Noble believes that any degradation of silicone sealant is secondary to, and was in fact caused by, the downward deflection of the bathtub due to it being inadequately supported to the perimeter. He did not observe any obvious evidence of deliberate damage to the silicone sealant, such as by children picking at it. Mr Noble does not believe that the leak was caused by inadequate or improper application or maintenance of the silicone sealant. I was impressed by Mr Noble as a witness during cross-examination. He gave his answers in a thoughtful and considered manner and provided detailed and logical explanations.
  3. [111]
    I note that the Sedgwick Progress Report dated 29 November 2018 (annexed to the statement of Mr Yates dated 25 March 2019) reported on rectification work undertaken in relation to the Complaint. It noted that:

…once the wall was opened from the adjoining bedroom it was evident that the issue... was in fact the waste to the bath... The existing bath is not supported sufficiently underneath and the original waste fitting was not installed correctly as the rubber seals were removed and only silicone was used to seal the waste... For these reasons we believe there is a fracture within the bath around the waste. With the new flexi waste fitted when pressure was applied inside the bath this would cause more water to escape from the waste area.

  1. [112]
    Mr Ryan accepts that there is substantial consequential damage to the Property as a result of a water leak. However, Mr Ryan believes that the bath was installed in accordance with section 3.8.1.7 of the BCA 2011 and AS 3740. Mr Ryan believes that the water leak was a result of an overfilled/overflowing bath, splashing of water or water entering the cavity through split silicone as a result of inadequate or improper maintenance. He observed that the silicone sealant was split and mouldy. He said that the tenants reported that the Owner had not conducted any substantial maintenance or repairs on the Property during the tenancy. He referred to sections 11.6 and 13.3 of the STG Guide. He also said that the tenant reported that the leak was not as pronounced when she was not using the bath. He accepted that when a bath is regularly used and is filled with water, it places downward pressure on the supporting timbers which can cause compression of supporting timbers over time. He raised the possibility that irregular cleaning, allowing water to settle and corrosive cleaning chemicals can impact on the life frame of silicone sealants. Mr Ryan disputes conclusions in the Sedgwick Progress Report that the bath waste fitting was not installed correctly and that only silicone was used to seal the waste. He considers that if only silicone was used to seal the waste, then any leak would have been apparent within a short period of time after construction had been completed and the bath was being used. He believes that such a leak would have been evident at the time of final inspection by the plumbing inspector and upon inspection by Mr Noble.
  2. [113]
    Having considered the evidence as a whole, I prefer the evidence of the Sedgwick Progress Report dated 29 November 2018 (annexed to the statement of Mr Yates dated 25 March 2019). I note that Mr Ryan was critical of the findings of the Sedgwick Progress Report and the author of the report was not made available for cross-examination. However, I have taken into account that the author of the Sedgwick Progress Report had the benefit of conducting a close and detailed inspection of the bath and affected areas as part of the rectification work undertaken, which no other witness has done. Further, I consider that in some relevant ways the findings of the Sedgwick Progress Report neatly aligns with some of the findings of Mr Noble, in particular, Mr Noble’s finding that there was a downward deflection of the bath when weight was applied which indicated inadequate support to prevent distortion and cracking. As stated above, I found Mr Noble to be a compelling witness because he explained his evidence in a manner which seemed to be reasoned and sensible.
  3. [114]
    On the evidence, I accept that water damage from a water leak was extensive and included further deterioration of the underlying bath support and damage to the adjoining bedroom. I further accept that the nature of the dry rot indicates that the leak occurred over a period of years.
  4. [115]
    I do not accept Mr Ryan’s opinion that the water leak was the result of an overfilled/overflowing bath or splashing of water. There is no other evidence which indicates that overfilling or overflowing of the bath or splashing of water occurred. Further, I consider it unlikely that overfilling or overflowing of the bath or splashing of water would have caused the significant extent of damage over such a considerable period of time without other evidence of damage. Further, Mr Noble’s investigations including splashing of water and he did not note any obvious leaking as a result.
  5. [116]
    I also do not accept Mr Ryan’s opinion that the water leak was the result of water entering the cavity through split silicone sealant as a result of children picking at it or inadequate or improper maintenance. I accept Mr Noble’s evidence that he did not see obvious evidence of damage to or destruction of the silicone sealant by children or inadequate maintenance and that the leak was not a result of inadequate or improper maintenance or destruction of the silicone sealant. I accept Mr Noble’s explanation that, in any event, the silicone sealant is a ‘superficial sealant’ that is applied to the bath and tile interface which covers the waterproofing membrane underneath.
  1. [117]
    I consider that the more likely explanation is that the integrity of the waterproofing of the bath was compromised in the manner stated in the Sedgwick Progress Report, namely that that the bath was not supported sufficiently underneath, the original bath waste fitting was not installed correctly with only silicone used to seal the waste and a fracture developed within the bath around the waste. The observations expressed in the Sedgwick Progress Report that ‘the existing bath is not supported sufficiently underneath’ and that there was likely a fracture within the bath around the waste which caused more water to escape ‘when pressure was applied’ to the bath (even after fitting the new flexi waste) is consistent with the evidence of Mr Noble. It is also consistent with the tenant’s experience, reported by Mr Ryan, to the effect that water leakage was more obvious when the bath was being used.
  2. [118]
    I do not accept Mr Ryan’s criticism of the conclusions in the Sedgwick Progress Report.
  3. [119]
    Mr Ryan argued that a leak caused by reasons identified in the Sedgwick Progress Report would have been evident at the time of final inspection by the plumbing inspector and upon inspection by Mr Noble. I accept the evidence in the Sedgwick Progress Report that the reason for the leak was identified by the plumber only upon conducting a close and detailed inspection of the bath and affected areas after opening the wall from the adjoining bedroom as part of the rectification work undertaken and only after installation of a new flexi waste was unable to stop the leak. In the circumstances, I think it is likely that the leak was not clearly evident at the time of final inspection by the plumbing inspector and upon inspection by Mr Noble.
  4. [120]
    Mr Ryan also argued that if only silicone was used to seal the waste as alleged in the Sedgwick Progress Report, then any leak would have been apparent within a short period of time after construction had been completed and the bath was being used. I accept the evidence of Mr Noble that the nature of the rot indicated that the leak occurred over a period of ‘years’. I also accept the evidence of Mr Noble that the bath support was further degraded by rot over time which in turn allowed further downward movement of the bath. In the circumstances, I think it is likely that the leak developed and worsened over a period of ‘years’ as the inadequate bath support worsened due to rot. I accept the evidence of Mr Noble that it was reasonably possible that, in the circumstances, the defect may have remained undetected for a period of time.
  1. [121]
    I consider that provisions of sections 11.6, 13.1 and 13.3 of the STG Guide, which might otherwise result in the building work being deemed to not be defective, are not relevant having regard to the nature of the defective work and the circumstances. The issues are that the bath was not supported sufficiently underneath, the original waste fitting was not installed correctly as the rubber seals were removed and only silicone was used to seal the waste and a fracture has developed within the bath around the waste. The issues are not that the silicone sealant was defective nor a result of actions or inactions of the owner or other persons outside of the control of Oracle.
  1. [122]
    Having regard to the evidence, I find that:
    1. (a)
      There is a water leak from the bath area;
    2. (b)
      It has resulted in localised adverse deterioration of building elements including timber and the wall adjoining the bedroom; and
    3. (c)
      It has also resulted in loss of amenity to the adjoining bedroom including damage to carpet and possibly the floor.
  1. [123]
    Further, I find that the cause of the leak is that:
    1. (a)
      The bath was not supported sufficiently underneath;
    2. (b)
      The original waste fitting was not installed correctly as the rubber seals were removed and only silicone was used to seal the waste; and
    3. (c)
      A fracture has developed within the bath around the waste.
  2. [124]
    On that basis, I find that the building work is ‘defective’ because:
    1. (a)
      It allowed water penetration into the building;
    2. (b)
      It adversely affected the health and safety of the persons residing in or occupying the dwelling;
    3. (c)
      It adversely affected the functional use of the dwelling;
    4. (d)
      Installation of the bathtub did not comply with Part 3.8.1.7 of the BCA and AS 3740 and section 14(2) of the Building Act because the bath was not supported to prevent distortion and cracking;
    5. (e)
      The original waste fitting was not installed correctly as the rubber seals were removed and only silicone was used to seal the waste; and
    6. (f)
      There is a fracture within the bath around the waste.
  3. [125]
    Further, I find that consequential damage has been caused by, or as a consequence of, carrying out the defective building work, in particular:
    1. (a)
      A fracture within the bath around the waste;
    2. (b)
      Localised adverse deterioration of building elements including timber and the wall adjoining the bedroom; and
    3. (c)
      Loss of amenity to the adjoining bedroom including damage to carpet and possibly the floor.
  4. [126]
    On that basis, I find that the water leak and consequent damage is ‘defective building work’ for the purposes of section 72 of the QBCC Act and the Rectification Policy because it is faulty or unsatisfactory including because it does not comply with:
    1. (a)
      Part 3.8.1.7 of the BCA and AS 3740 because the bath was not supported to prevent distortion and cracking;
    2. (b)
      Section 13.1 of the STG Guide because the bath was not installed in accordance with the requirements of the BCA and AS 3740; and
    3. (c)
      Section 14(2) of the Building Act because it does not comply with all requirements of the BCA.
  5. [127]
    Further, I find that the water leak and consequent damage is ‘structural defective building work’ for the purposes of the Rectification Policy because it is ‘defective building work’ (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it:
    1. (a)
      Adversely affects the structural performance of a building, in particular because the inadequate bath support worsened due to rot from the leak;
    2. (b)
      Adversely affected the health or safety of persons residing in or occupying the building;
    3. (c)
      Adversely affected the functional use of the building; and
    4. (d)
      Allowed water penetration into the building.
  1. [128]
    On the basis of the matters set out above, I am satisfied that the criteria are satisfied to enliven the power to direct rectification of building work and remediation of consequential damage pursuant to section 72(2) of the QBCC Act.

Should the Tribunal exercise its discretion to give a direction to direct rectification of building work and remediation of consequential damage?

  1. [129]
    The Tribunal’s power to direct rectification of building work and remediation of consequential damage pursuant to section 72(2) of the QBCC Act is a discretionary power.
  2. [130]
    In considering whether the Tribunal should exercise its discretion to make a direction, I have had regard to numerous matters set out below.

What circumstances can the Tribunal take into account in deciding whether to give a direction – is it limited to consider only the circumstances at the time the Internal Review Decision was made or can it also consider subsequent circumstances?

  1. [131]
    Pursuant to section 72(3) of the QBCC Act, in deciding whether to give a direction, the Tribunal may take into consideration all the circumstances it considers are reasonably relevant and it is not limited to a consideration of the terms of the contract for carrying out the building work including the terms of any warranties.
  2. [132]
    QBCC submits that the ‘defective work’ has now been rectified by a third party under the statutory insurance scheme and is no longer defective. I note that is consistent with the evidence of the Sedgwick Progress Report dated 29 November 2018 (annexed to the statement of Mr Yates dated 25 March 2019) which was based on inspection of the bath and affected areas which occurred as part of rectification work undertaken.
  3. [133]
    On that basis, I find that the ‘defective work’ has now been rectified.
  4. [134]
    QBCC has raised the issue of whether in conducting this de novo merits review under the QBCC Act, the Tribunal may, or is required to, take into account that the ‘defective work’ is no longer defective and whether a direction to rectify may now be refused on that basis.
  5. [135]
    The critical issue is whether, in conducting this review, the Tribunal should adopt a ‘temporally limited’ or a ‘temporally fluid’ approach to the evidence. That is, whether the Tribunal is limited to considering the facts and circumstances existing at the time of the Internal Review Decision or whether the Tribunal may (or perhaps must) have regard to the state of affairs existing at the time that the Tribunal makes its decision in these review proceedings.
  6. [136]
    QBCC made extensive submissions in relation to the issue. QBCC also referred the Tribunal to the Tribunal’s building review decision in Paul Wayne Townsend v Queensland Building and Construction Commission [2019] QCAT 239 (‘Townsend’).
  7. [137]
    Oracle submits that it would be an absurdity if, as a result of the ‘defective work’ being fixed, that the Tribunal would be barred from affirming the Internal Review Decision and the Direction to Rectify if it was otherwise minded to do so.
  8. [138]
    In Townsend, Member Gardiner considered the specific issue which this Tribunal is now required to determine. Member Gardiner concluded that a temporally fluid approach was appropriate for a review of a decision to give a direction to rectify under section 72 of the QBCC Act and, on that basis, the Tribunal was entitled to take into account evidence that the defective work had since been rectified.[16]
  9. [139]
    I respectfully agree with and adopt the reasons and conclusions of Member Gardiner in that regard.
  10. [140]
    On that basis, I have taken into consideration that the ‘defective work’ has now been rectified and is no longer defective.

Should a direction to rectify should be given when the ‘defective work’ has now been rectified and is no longer defective?

  1. [141]
    The issue arises as to whether a direction to rectify should be given when the ‘defective work’ has now been rectified and is no longer defective.
  2. [142]
    The issue of whether it was futile to issue a direction to rectify when the ‘defective work’ was already rectified was considered by Member Gardiner in Townsend:[17]

[70] Is it is appropriate, in all the circumstances, for this Tribunal to exercise the discretion to issue a direction to Mr Townsend?

[71] There may be no utility in remaking the decision. There is nothing for Mr Townsend to remedy. It is a direction that can never be complied with. Mr Townsend no longer has responsibility for the block wall.

[72] A decision to decline to exercise the discretion to confirm the direction would set aside the earlier decision under the s 72 process.

Section 47 QCAT Act

[73] For the same reasons explained above for not issuing a direction to rectify, I am satisfied Mr Townsend’s review application is also without substance and pursuant to s 47(1)(b) of the QCAT Act, I could dismiss the review application.

Which outcome then?

[74] Both sections present appropriate ways to finalize this review application. However each potentially produces a completely different outcome.

[75] That the work has been remediated does not inevitably compel the conclusion that the decision to issue the direction to rectify ought to be set aside. The discretion under section 72(2)(a) is exercised according to the facts of each case. It is open to the Tribunal to confirm a decision to issue a direction to rectify, notwithstanding that the work has since been rectified.

[76] At the hearing of this matter the Commission urged me to use the provisions of the QBCC Act, even though the outcome may not be as submitted by them.

[77] On balance, I accept that there is no real reason why the s 72 process should not be the applied law. The QBCC Act covers the issue. The QCAT Act, while also applicable is the Tribunal Act, is not the Industry Act and on general principles, the more specific Act should prevail.

[78] Should the outcome be that Mr Townsend’s reputation as a builder go forward without a recorded blemish, just because the remediation has occurred and responsibility is no longer his for defective workmanship?

[79] On balance, I do not believe this is a fair outcome. What is fair in the circumstances is to record that on this occasion, Mr Townsend’s work was defective, even though a direction to rectify is of no effect.

[80] I am satisfied it is appropriate to exercise my discretion in these circumstances to confirm the decision of the Commission made on 26 April 2018, to issue a direction to Paul Wayne Townsend to cause the rectification of building work.

  1. [143]
    In the circumstances, I respectfully agree with and am inclined to take the same approach as Member Gardiner in Townsend.
  2. [144]
    Subject to the following important matters, I am satisfied that in the circumstances a direction to rectify may be given notwithstanding that the ‘defective work’ has now been rectified and is no longer defective.

Is it fair to give a direction to direct rectification of building work and remediation of consequential damage?

  1. [145]
    Pursuant to section 72(5) of the QBCC Act, the Tribunal is not required to issue a direction if it is satisfied that, in the circumstances, it would be unfair to give the direction to the person who carried out the building work.
  2. [146]
    Oracle submits that it would be unfair to issue a direction because:
    1. (a)
      There is insufficient evidence as to the cause of the leak, when it arose, or when steps were first taken by the Owner or the managing agents to stem the extent of the damage through the use of plastic bags;
    2. (b)
      The direction was issued on the basis that there was a leak;
    3. (c)
      A leak may have occurred as early as 2016, but was not discovered until August 2017, almost six years after practical completion of the Property;
    4. (d)
      Notwithstanding the evidence that the defect came to the attention of the Owner in August 2017, there is evidence that water damage and dry rot had occurred over a period of years, and that the tenant raised the issue in early 2016;
    5. (e)
      The QBCC inspector took no steps to ascertain when means were taken to restrict the damage by placing plastic bags under the carpet in the adjoining bedroom and when the owner became aware of the defective work. In the circumstances, the QBCC could not exclude the possibility that the Owner potentially failed to notify QBCC within 12 months of becoming aware of the defects in accordance with Clause 3 of the Rectification Policy;
    6. (f)
      The extent of the investigation undertaken by QBCC could not completely rule out the possibility that wear and tear or lack of owner maintenance issues contributed to the Works being structurally compromised (something which would have been pertinent given the length of time between completion, the extent of the damage, the length of time it would have taken to occur and the complaint being raised); and
    7. (g)
      While an important object of the legislation is to maintain building standards, an equally important objective is to achieve a reasonable balance between the interests of building contractors and consumers. The objective of the maintenance of building standards is not compromised by not issuing a direction in these circumstances. Conversely, issuing a direction would not be striking a reasonable balance between owner and applicant.
  3. [147]
    QBCC submits that it would be fair to issue a direction because:
    1. (a)
      The evidence of Craig Ryan that a tenant stated to him that they reported the water leak to the property manager in early 2016 (and that by inference the Owner likely knew of the defect earlier than 1 August 2017) is unsubstantiated and should not be given weight;
    2. (b)
      The Owner made the Complaint in accordance with the Defects Policy, in that:
      1. The Owner first noticed the defect on 1 August 2017, when the property manager inspected the property and prepared a report to the Owner;
      2. The Owner notified Oracle by email on 4 August 2017; and
      3. The Owner filed the Complaint with QBCC on 15 August 2017;
    3. (c)
      Evidence of Craig Ryan that wear and tear or lack of owner maintenance contributed to the Works being structurally compromised should be given no weight; and
    4. (d)
      In all of the circumstances it is fair to exercise the discretion to give the direction to rectify to Oracle.
  4. [148]
    I consider that it would not be unfair to give a direction to rectify to Oracle for the following reasons:
    1. (a)
      Pursuant to section 20(2) of the QCAT Act, the Tribunal has determined this review by conducting a fresh hearing on the merits having regard to the evidence now before the Tribunal. Both parties have had the opportunity to present all relevant evidence to the Tribunal and have had the opportunity to address any alleged defects in the QBCC investigation;
    2. (b)
      As set out above, I have found on the evidence that there is a water leak from the bath area which was caused by the existing bath not being sufficiently supported underneath, the original waste fitting not being installed correctly (as the rubber seals were removed and only silicone was used to seal the waste) and a fracture within the bath around the waste;
    3. (c)
      As set out above, I do not accept Mr Ryan’s opinion that the water leak was the result of water entering the cavity through split silicone sealant as a result children picking at it or inadequate or improper maintenance;
    1. (d)
      Further as set out above, I have found on the evidence that whilst the consequential damage likely occurred over a period of years, it was reasonably possible that the defect may have remained undetected for a period of time;
    1. (e)
      I find that the defect came to the attention of the Owner when they were so notified by the property managers on 1 August 2017. I accept that the Owner notified Oracle by email on 4 August 2017 and filed their Complaint with QBCC on 15 August 2017. I have given Mr Ryan’s evidence that a tenant stated to him that they reported the water leak to the property manager in writing in early 2016 (and that by inference the Owner likely knew of the defect earlier than 1 August 2017) little weight because there is no direct evidence in that regard. The records of the property manager are not consistent with hearsay allegations that it was notified of the defects in early 2016. Further, there is no evidence that the property manager recorded any issue about a water leak prior to 1 August 2017. I do not consider it to be inconsistent (as was suggested by Mr Ryan) that a representative of the property manager attended to investigate a reported water leak at the Property on 1 August 2017. There is no evidence in relation to when plastic bags were placed under the carpet in the adjoining bedroom and certainly no evidence that they were placed there at any time prior to 1 August 2017;
    2. (f)
      On that basis, I accept that the Owner made the Complaint in accordance with Clause 3 of the Defects Policy, which states that ‘... the consumer must lodge a formal complaint with the QBCC of defective building work as soon as possible but no later than within 12 months of becoming aware of the defects’; and
    3. (g)
      Having regard to all the relevant circumstances and the objects set out in section 5 of the QBCC Act, it would not be unfair to issue a direction to rectify.

What is the effect of section 72A(4) of the QBCC Act?

  1. [149]
    Section 72A(4) of the QBCC Act states:

A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.

  1. [150]
    As Oracle achieved practical completion of the Works on 21 December 2011, the six year and six month time limit prescribed by section 72A(4) of the QBCC Act expired on 21 June 2018.
  2. [151]
    There is a dispute between the parties as to when QBCC served the Direction to Rectify on Oracle, and in particular, whether the Direction to Rectify was given to Oracle outside of the time limit prescribed in section 72A(4) of the QBCC Act. QBCC asserts that it served the Direction to Rectify on Oracle on or about 21 February 2018 by post addressed to Oracle’s Postal Address. However, Oracle asserts that it did not receive the Direction to Rectify prior to 26 July 2018, which is outside the time limit prescribed by section 72A(4) of the QBCC Act.
  3. [152]
    Section 109A of the QBCC Act states:
  1. (1)
    A document may be served under this Act on a licensee by leaving it at, or sending it by post, telex, facsimile or similar facility to, the address of the licensee in the register of licensees kept by the commission.
  1. (2)
    Subsection(1) does not limit theActs Interpretation Act 1954,section39.
  1. (3)
    In this section—

addressincludes a postal address.

  1. [153]
    Section 39 of the Acts Interpretation Act 1954 (Qld) (‘Acts Interpretation Act’) relevantly provides:
  1. (1)
    If an Act requires or permits a document to be served on a person, the document may be served—

...

  1. (b)
    on a body corporate—by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.
  1. (2)
    Subsection(1)applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
  1. (3)
    Nothing insubsection(1)
  1. (a)
    affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or
  1. (b)
    affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection.
  1. [154]
    Section 39A of the Acts Interpretation Act states:
  1. (1)
    If an Act requires or permits a document to be served by post, service—
  1. (a)
    may be effected by properly addressing, prepaying and posting the document as a letter; and
  1. (b)
    is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
  1. (2)
    If an Act requires or permits a document to be served by a particular postal method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.
  1. (3)
    Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
  1. (4)
    Without limiting subsection (2), the requirement or permission mentioned in the subsection is taken to be satisfied, and is taken always to have been satisfied, for the service of a document if the document is, or was, posted by certified mail provided by Australia Post.

(Emphasis added)

  1. [155]
    Pursuant to the provisions of 109A of the QBCC Act and sections 39 and 39A of the Acts Interpretation Act, service of the Direction to Rectify may be effected by posting it to an address recorded on the QBCC Licensee Register. Further, service by post will be taken to be effected at the time at which it would be delivered in the ordinary course of post, unless the contrary is proved.
  2. [156]
    In determining when the Direction to Rectify was given to Oracle, I note that there is no dispute that:
    1. (a)
      The Direction to Rectify was made on 21 February 2018;
    1. (b)
      At all relevant times, Oracle’s Postal Address was recorded on the QBCC Licensee Register;
    2. (c)
      At all relevant times, Oracle had three addresses recorded in the Licensee Register. They were Oracle’s business address and email address in addition to Oracle’s Postal Address. QBCC often sent particular correspondence/notices to Oracle at all three addresses;
    3. (d)
      Oracle received other correspondence/notices from QBCC by post to Oracle’s Postal Address, including the Original Decision and a letter dated 20 April 2018 which advised that Oracle had failed to comply with the Direction to Rectify;
    1. (e)
      A Directions Hearing held by the Tribunal on 26 July 2018 directed ‘[t]he Respondent to confirm if a direction to rectify has been issued with respect to the internal review decision by 10 August 2018, 4.00pm’; and
    2. (f)
      In accordance with that direction, Oracle received the Direction to Rectify through its lawyers on 26 July 2018.
  3. [157]
    QBCC’s evidence in relation to service of the Direction to Rectify is as follows:
    1. (a)
      Mr Yates said that on 21 February 2018, he issued the Direction to Rectify to Oracle. The Direction to Rectify referred to Oracle’s Postal Address. A letter dated 20 April 2018 which advised that Oracle had failed to comply with the Direction to Rectify was sent to Oracle’s Postal Address;
    2. (b)
      Mr Glen said that at all relevant times, Oracle’s Postal Address was noted in the Licensee Register. His search of the Australia Post website indicates that Australia Post estimates the time for delivery for standard parcel post from QBCC’s address at West End to Oracle’s Postal Address to be two business days;
    3. (c)
      Ms Blaney said that QBCC’s usual process is to send directions to rectify to all registered addresses on the QBCC Licensee Register. She would have expected that the Direction to Rectify would have been sent to all of the three addresses recorded in the Licensee Register in respect of Oracle. However, QBCC’s records indicate that on 21 February 2018, QBCC sent the Direction to Rectify only to Oracle’s Postal Address. Ms Blaney said that her search of QBCC’s online records of correspondence recorded that:
      1. On 19 February 2018, QBCC sent to Oracle’s lawyers the Internal Review Decision;
      2. On 21 February 2018, QBCC sent to Oracle at Oracle’s Postal Address the Direction to Rectify;
      3. On 20 April 2018, QBCC sent to Oracle at Oracle’s Postal Address correspondence which stated that Oracle had failed to rectify defective work pursuant to the Direction to Rectify;
      4. On 8 May 2018, QBCC received from Oracle’s lawyers correspondence which stated that Oracle had not received the Direction to Rectify;
      5. On 4 July 2018, QBCC received correspondence from Oracle’s lawyers enclosing an affidavit of Mr Ryan dated 3 July 2018; and
    1. (d)
      Ms Cronin, QBCC Customer Service Officer, said that Mr Yates assigned her the task to send the Direction to Rectify to Oracle. On 21 February 2018, she posted the Direction to Rectify to Oracle at Oracle’s Postal Address by regular post and completed a diary note to that effect. She believes that the Direction to Rectify was sent to Oracle only by that manner: a copy was not also sent to Oracle at any other address or email address recorded in the QBCC Licensee Register.
  4. [158]
    Oracle’s evidence in relation to service of the Direction to Rectify is as follows:
    1. (a)
      Ms Marjanne Lust, Oracle’s full-time receptionist, said that she is required to collect mail from Oracle’s post office box, open the mail, date stamp it and deliver it to the named recipient. At the relevant time, it was her practice to deliver mail to Mr Wayne Marshall. She does not recall having opened mail from QBCC which enclosed the Direction to Rectify;
    2. (b)
      Mr Wayne Marshall, Oracle’s Building Manager, said that at the relevant time all correspondence from QBCC to Oracle was given to him. It was common for QBCC to send Oracle multiple copies of correspondence to other addresses in addition to Oracle’s Postal Address recorded in the QBCC Licensee Register. He said that Oracle did not receive any correspondence from QBCC via email nor post in the period from 20 February 2018 to 20 March 2018;
    3. (c)
      Ms Aditya Zutshi, Associate Partner of Crowe Horwath, Oracle’s accountants, said that her firm did not receive correspondence from QBCC dated 21 February relating to the Property;
    4. (d)
      Mr Stephen Knyvett, Solicitor with Kilmartin Knyvett, Oracle’s lawyers, said that on 4 May 2018 he sent correspondence (incorrectly dated 15 March 2018) to QBCC which advised that Oracle never received the Direction to Rectify; and
    5. (e)
      Mr Ryan, Oracle’s Business Development Manager, said that having made enquiries of Oracle’s staff, he believes that Oracle did not prior to 26 July 2018 (when it was provided by Oracle’s lawyers) receive QBCC’s letter dated 21 February 2018 nor the Direction to Rectify.
  5. [159]
    I note that Oracle’s evidence in relation to receipt of the Direction to Rectify is generally consistent with it not having received the Direction to Rectify from QBCC by post nor at any time prior to 26 July 2018 when it was provided by Oracle’s lawyers. I find Oracle’s evidence persuasive in that regard. Further, I note that both Oracle’s and QBCC’s evidence is consistent that, on that occasion, QBCC did not follow its standard practice of sending additional copies of the particular correspondence which enclosed the Direction to Rectify to Oracle’s other addresses recorded in the QBCC Licensee Register.
  6. [160]
    Having regard to the evidence, I accept that QBCC did not give the Direction to Rectify to Oracle by post nor at any time prior to 26 July 2018 when it was provided by Oracle’s lawyers. I find that service of the Direction to Rectify was not effected by QBCC posting it to Oracle at Oracle’s Postal Address. As the contrary is proved, section 39A(1)(b) of the Acts Interpretation Act does not operate to deem service to be effected in the ordinary course of post.
  7. [161]
    On that basis, I find that QBCC did not give the Direction to Rectify to Oracle within six years and six months after Oracle achieved practical completion of the Works on 21 December 2011.
  8. [162]
    Pursuant to section 72A(4) of the QBCC Act, the Tribunal cannot give a direction to rectify or remedy more than six years and six months after the building work to which the direction relates was completed or left in an incomplete state, unless application for extension of time is made by the QBCC and the Tribunal is satisfied that there is in the circumstances sufficient reason for extending the time for giving the direction and it extends the time accordingly.
  9. [163]
    Oracle submits that the Tribunal should not give a direction to rectify in the circumstances that more than six years and six months has now elapsed since Oracle achieved practical completion of the Works.[18]
  10. [164]
    Section 72A(4) of the QBCC Act requires that any extension of time may be given ‘upon application by the commission’.
  11. [165]
    QBCC has not made an application to extend the time for giving a direction to rectify.
  12. [166]
    In Stephens & Anor v Queensland Building and Construction Commission [2018] QCAT 281 at [37], Member Howe stated in considering a matter on the papers that:

An application to the Tribunal by the QBCC for permission to issue a direction to rectify out of time is necessary. The owners’ within application cannot succeed. The Tribunal cannot make any orders in the terms sought or offer other relief to the applicants. The application should be dismissed.

  1. [167]
    Similarly, in Doolan v Queensland Building and Construction Commission [2017] QCAT 58 at [8] to [11], Member Hughes stated:

[8]For the Tribunal to extend time to issue a ‘Direction To Rectify’, section 72A(4) requires an application by the Commission for the Tribunal to extend the time. The Commission has not so applied.

[9]Although the Tribunal has a general discretion to extend a time limit fixed by an enabling Act, the language used in section 72A(4) is mandatory: a Direction cannot be given after 6 years and 3 months unless the Commission has applied to extend time. By providing a precondition to the Tribunal’s jurisdiction to extend time, the provision is substantive. As this precondition to the exercise of the Tribunal’s discretion to extend time has not been satisfied, the Tribunal has no jurisdiction to extend time.

[10] This means that because it is more than 6 years and 3 months after the work was completed and the Tribunal cannot extend the time to give a ‘Direction To Rectify’ without application by the Commission, a ‘Direction To Rectify’ cannot be given.

[11] Ms Doolan’s application for review the Commission’s decision not to give a ‘Direction to Rectify’ must therefore be dismissed. (Footnotes omitted).

  1. [168]
    In these circumstances where QBCC has not made an application to extend the time for giving a direction to rectify, there is no jurisdiction to give a direction to rectify.
  2. [169]
    Even if I am incorrect in that regard, I do not consider that that there is, in the circumstances of the case, sufficient reason for extending the time for giving the direction. Accordingly, it is not appropriate for me to extend the time for giving a direction to rectify.
  3. [170]
    Having regard to all the relevant circumstances, I am not satisfied that it would be appropriate to exercise my discretion to confirm the Internal Review Decision.
  4. [171]
    In accordance with 72(3) of the QBCC Act, in deciding whether to give a direction, I have had regard to all the findings and matters set out above. I have also had regard to the objects set out in section 3 of the QBCC Act.

What orders should the Tribunal make?

  1. [172]
    Pursuant to section 24(1) of the QCAT Act, the orders that can be made by the Tribunal on review are:
    1. (a)
      Confirm or amend the decision;
    2. (b)
      Set aside the decision and substitute its own decision; or
    3. (c)
      Set aside the decision and return the matter to the QBCC to reconsider the decision, with directions the Tribunal considers appropriate.
  2. [173]
    Having regard to the matters set out above, it is appropriate that I order that the decision of Ms White on 19 February 2018 to issue a direction to rectify to Oracle Building Corporation Pty Ltd in respect of 26 Wolfik Drive, Goodna in the State of Queensland is set aside and replaced with the decision not to issue a direction to rectify.

Consideration of the application for review of the Direction to Rectify – Proceeding GAR286-18

  1. [174]
    The Direction to Rectify, which is the subject of proceeding GAR286-18 of this Tribunal, is the direction to rectify defective work made by Mr Yates on 21 February 2018 as follows:

DIRECTION TO RECTIFY AND/OR COMPLETE NO. 0103082 ...

An internal review has been conducted regarding the owner’s complaint of defective building work at the above property. As previously notified, the internal review decision of Debbie White dated 19 February 2018... is that you are responsible for rectifying work at the property in accordance with the list attached at page 3. Where applicable, this list also contains items from the original decision. The due date for completion of the work is 26 March 2018...

...

DIRECTION TO RECTIFY AND/OR COMPLETE No. 0103082

Due Date for Completion: 26 March 2018

You are directed to rectify the following defective or incomplete building work by the Due Date for Completion.

Ensure all works carried out pursuant to this Direction to Rectify are done so in compliance with the Building Act 1975. Provide all certificates in regard to all statutory requirements, copies to be provided to owners and Queensland Building and Construction Commission.

  1. The waterproofing membrane and sealant system has detached at the bath interface, permitting water to migrate below the waterproofing membrane and does not comply with NCC Vol 2 2011 Sec 3.8.1. This is resulting in localized adverse deterioration of building elements and loss of amenity to the adjoining bedroom.

(Pertains to complaint item 1 of the QBCC complaint form)

Is the Direction to Rectify a ‘reviewable decision’?

  1. [175]
    In relation to the issue of whether the Direction to Rectify is a ‘reviewable decision’, the Miscellaneous Matters Decision decided that:[19]

[12] The QBCC submitted that “[t]here is no further decision capable of review by the Tribunal” in proceedings GAR286-18. However, it seems to me that the decisions on 19 February 2018 and 21 February 2018 are both capable of falling within the scope of s 86(1)(e) of the QBCC Act.

[13] There was nothing preventing the QBCC from deciding to issue a direction to rectify and issuing a direction to rectify in a single step. However, the QBCC has ipso facto made two separate decisions on two separate dates, and both are capable of review.

  1. [176]
    As stated above, I am not satisfied that I am required to be bound by the findings in respect of the matters decided by the Miscellaneous Matters Decision. To satisfy the Tribunal’s obligation to conduct a fresh hearing on the merits and produce the correct and preferable decision in accordance with sections 18, 19, 20, and 21 of the QCAT Act, I consider that it is necessary for me to independently determine relevant issues having regard to the evidence currently presented to the Tribunal, notwithstanding that they may have been previously determined by the Miscellaneous Matters Decision on the papers.
  2. [177]
    Oracle submits that the Direction to Rectify, being a decision by QBCC to direct rectification, is a reviewable decision pursuant to section 86E(a) and section 86(1)(e) of the QBCC Act.
  3. [178]
    QBCC submits that the Direction to Rectify is not a reviewable decision pursuant to sections 86(1)(e), 86E(b) and 87 of the QBCC Act and sections 17, 19, 20 and 22 of the QCAT Act.
  4. [179]
    Section 17 of the QCAT Act provides:

17Generally

  1. (1)
    The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
  1. (2)
    For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.
  1. [180]
    By section 86E(a) of the QBCC Act, a decision regarding a matter under section 86(1)(e) is reviewable by external review to the Tribunal.
  2. [181]
    By section 86(1)(e) of the QBCC Act, a decision of QBCC to give a direction to rectify or remedy or not to give the direction is a reviewable decision.
  3. [182]
    The issue arises as to whether the Direction to Rectify is a decision, made or taken to have been made, of QBCC to give a direction to rectify or remedy.
  4. [183]
    The QCAT Act does not define the expression ‘decision’ in a general context,[20] nor does it explain the meaning of the term ‘made or taken to have been made’.
  5. [184]
    In McNab Constructions Pty Ltd v Queensland Building Services Authority [2013] QSC 57 at [18] to [19], Her Honour Dalton J observed a distinction between a decision to issue a direction to rectify and a direction to rectify:

From a review of the statutory provisions it should be plain that the question before me is not the same as the question before QCAT. QCAT has jurisdiction to review the decision of the respondent to direct rectification. The decision to direct rectification is necessarily anterior to the giving of a direction for rectification. My decision concerns only the directions to rectify actually given, it does not touch upon the validity of the decision of the respondent to direct rectification, or of course the merits of that decision. My decision is only concerned with the notice of that decision given to the applicant, by way of direction pursuant to s 72(1) of the QBSA Act.

For these reasons it seems to me that the existence of the impending merits review in QCAT is no reason why I should not make the declaration sought. Further, having regard to the limited statutory powers of QCAT, I am of the view that QCAT does not have jurisdiction to entertain an application for a declaration. As I say, I cannot see that there is any overlap between the proceeding in this Court and the proceeding in QCAT.

  1. [185]
    In Queensland Building & Construction Commission v Whalley [2018] QCATA 38, Acting Senior Member Browne and Member Howe stated (albeit by way of obiter dicta) that:

[33]We also accept the QBCC’s submission that the Tribunal did not have any power to deal with the decision of 8 April 2016 (also referred to as the decision of 5 April 2016 in the Tribunal’s reasons) in relation to the DTR no. 42267.

[35]There was no request to review the decision to issue DTR no. 42267 sought by Mr Whalley in his application. DTR no. 42267 was issued on 8 April 2016 and was not a decision about the satisfactory standard of work undertaken at the direction of the QBCC pursuant to s 86(1)(f) but a decision pursuant to s 86(1)(e) that building work be rectified.

[36]The Tribunal’s review jurisdiction was only enlivened in respect of the decision of 5 April 2016 for DTR no. 40913. There was no inherent or other power of the Tribunal to make final orders about the decision made by the QBCC on 8 April 2018 even if that decision was, for the purposes of the QBCC Act, a reviewable decision. (Emphasis added).

  1. [186]
    It is the decision, made or taken to be made by QBCC, to give a direction to rectify or remedy which is the subject of review by this Tribunal pursuant to section 86E(a) and section 86(1)(e) of the QBCC Act and section 17(1) of the QCAT Act.
  2. [187]
    The Internal Review Decision was a decision made by QBCC to give a direction to rectify or remedy. That decision has been reviewed by review of the Internal Review Decision in proceeding GAR092-18 which is detailed above.
  3. [188]
    The Direction to Rectify referred to the Internal Review Decision and was a means of giving effect to the Internal Review Decision. The Direction to Rectify is evidence of a decision, made or taken to be made, by QBCC, to give a direction to rectify or remedy.
  4. [189]
    However, in my view, the Direction to Rectify is not itself a decision, made or taken to be made by QBCC, to give a direction to rectify or remedy. On that basis, the Direction to Rectify, which is the subject of proceeding GAR286-18 of this Tribunal, is not itself a ‘reviewable decision’.
  5. [190]
    Having regard to the matters set out above, it is appropriate that I order that the application for review of a direction to rectify made by Mr Yates on 21 February 2018 in respect of 26 Wolfik Drive, Goodna in the State of Queensland is dismissed.

Footnotes

[1] Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (17 January 2019), a decision in respect of GAR092-18 and GAR286-18 made on the papers.

[2] The affidavit of Ms Blaney sworn on 16 May 2019 was filed on 17 May 2019 and also on 23 May 2019.

[3] Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 42, [15], [47]-[49].

[4] Statutory Instruments Act 1992 (Qld), s 7 and s 9.

[5] Queensland Building and Construction Commission, ‘Standards & Tolerances Guide’, (Guide 3rd ed, 1 May 2019) clause 0.1.

[6] Ibid, clause 11.6.

[7] Application to review decision GAR092-18, Part B, and annexed QBCC letter dated 19 February 2018.

[8] Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (17 January 2019), a decision in respect of GAR092-18 and GAR286-18.

[9] Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (17 January 2019), [18].

[10] Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (17 January 2019), [10]-[17]. Note that the reasons of the learned Member also dealt with another application for miscellaneous matters that is not relevant for present purposes.

[11]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

[12] Respondent’s Final Submissions dated 14 June 2019, [41] (compare [43] in relation to the Direction to Rectify).

[13] Applicant’s Outline of Submissions dated 6 June 2019, [32].

[14] Ibid.

[15] Now called the National Construction Codes.

[16] Paul Wayne Townsend v Queensland Building and Construction Commission [2019] QCAT 239, [50]-[51].

[17] Ibid, [70]-[80].

[18]Applicant’s Outline of Submissions dated 6 June 2019, [90].

[19] Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT (17 January 2019), [12]-[13].

[20] The dictionary in Schedule 1 to the QCAT Act contains definitions of ‘decision’ when used in the Act in respect of a Tribunal decision.

Close

Editorial Notes

  • Published Case Name:

    Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 69

  • Court:

    QCAT

  • Judge(s):

    Garner

  • Date:

    04 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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